The California Department of Toxic Substances Control (DTSC) Safer Consumer Products Regulations are now in effect (See "California Cracks Down on Chemicals"). While the most onerous requirements for "responsible entities" (manufacturers, importers, assemblers and retailers) will not hit for a while, companies should consider taking some initial steps now to understand how these regulations may affect operations in the future.
What You Need to Do
Review the Candidate Chemicals List. The recently published list is divided into two parts — the DTSC Candidate Chemicals List and the Initial Candidate Chemicals List. Prior to January 1, 2016, DTSC will consider a limited scope of candidate chemicals when reviewing product-chemical combinations as priority products. This Initial Candidate Chemicals List contains 164 substances but covers more substances because many are listed as part of a group and several individual members of a group or class of chemicals could have met the regulatory criteria for inclusion on the list. After January 1, 2016, DTSC can evaluate substances from the full Candidate Chemicals List, containing approximately 1,200 substances.
Companies should begin now to review the Initial Candidate Chemicals List, available at www.dtsc.ca.gov/SCP/ChemList.cfm, to determine if any of their consumer products contain one of these substances.
Consider a petition for delisting. If a company identifies a substance listed on the Initial Candidate Chemicals List or full Candidate Chemicals List but believes the criteria for listing aren't met, the regulations establish a process for petitioning DTSC to remove one or more chemicals from the Candidate Chemicals List. Entities can also petition DTSC to remove an entire chemical list from the sources from which the Candidate Chemicals List is derived. Such petitions can't be filed until at least three years from the effective date of the regulations.
Determine responsible entity roles and consolidate efforts. It will be important for companies with consumer products that may be identified as Priority Products to identify other similarly situated entities and assess the viability of working together through a consortium to conduct an Alternatives Analysis (AA). Considering the limited 60-day time period DTSC provides for a responsible entity to respond to the identification of a Priority Product, working out these relationships now may be prudent. Companies also could begin to review their supply chains to ensure that all responsible entities understand their respective roles with regard to a particular Priority Product.
Review Priority Product Work Plan. DTSC must develop by October 2014 an Initial Priority Product Work Plan that describes product categories it will use to evaluate and identify product-chemical combinations to be added to the Priority Products. The Work Plan is intended to provide a level of predictability to stakeholders regarding the types of products that could be considered for evaluation of product-chemical combinations. When the Work Plan is available, stakeholders should review it.
Review and comment on AA guidance. Before DTSC issues the final Initial Priority Products List, it must make available guidance materials to assist persons in performing AAs. DTSC has stated that draft guidance documents could be available at the end of 2013, with a final version available by the end of 2014. Companies should review and comment on these guidance documents to ensure that the AA process proceeds as efficiently and proficiently as possible.
Don't rely on legal challenges to make this all go away. Litigation is likely. Relying on a favorable outcome and doing nothing now is unwise. Also, don't be lulled into inaction. The time is now to prepare for the heavy regulatory lift impacted stakeholders will experience under the Safer Consumer Products Regulations. Be prepared, strategic and knowledgeable.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at firstname.lastname@example.org
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).